When Yeisy and Brian decided to flee violence in their native Guatemala for the United States, they knew what lie ahead: a dangerous journey over hundreds of miles of unfamiliar terrain and the very real chance that it would all be for naught.
The trek for Yeisy would be particularly dangerous. She was seven and a half months pregnant after being raped, but would have to take dozens of buses through Mexico from Guatemala — alone. Brian’s route out of Guatemala would take him through jungles, lakes, and deserts, as well as a scorching ride atop the infamous Mexican freight train known as “The Beast.”
Ultimately, both were caught trying to cross the U.S. border, but it’s there that two similar stories diverge. Yeisy got an attorney; Brian did not. What unfolded next is at the crux of a current federal court battle that could have huge implications for the nation’s immigration system.
When it comes to unaccompanied migrant children facing deportation, the difference between the haves and the have-nots is stark. Those who get pro bono legal representation early on, like Yeisy, are far more likely to successfully make their case for asylum or other protections that would allow them to stay in the U.S. Those who don’t almost always get deported.
Today, Yeisy is living legally in California and slowly building a new life after winning her asylum case. Brian — with little support from his family, and no attorney to help him navigate the immigration system — was ordered deported months after arriving.
That disparity in outcomes is at the heart of a lawsuit filed by the American Civil Liberties Union and immigrant rights groups against the Department of Justice asking a judge to force the government to appoint legal counsel for hundreds of unaccompanied minors fighting their cases in federal immigration courts.
"The evidence shows what common sense tells you: that if a child does not have a lawyer, they have virtually no chance of winning their case,” said Ahilan Arulanantham, an attorney for the ACLU who argued for the plaintiffs in federal court. "What’s at stake is the lives of thousands of children, and that’s not hyperbole."
Attorneys for the Department of Justice (DOJ) argue that undocumented immigrants in deportation proceedings aren’t entitled to court-appointed attorneys under the law. And introducing the entitlement would be a huge burden for the government, which processes thousands of migrant children each year.
“The issues raised in this case contain far-reaching ramifications for the parties, the taxpayers, and America’s immigration system as a whole,” William Silvis, assistant director of the Justice Department’s Office of Immigration Litigation Civil Division, wrote in a court filing.
At a March 24 hearing in Seattle, Deputy Assistant Attorney General Leon Fresco said there were three statutes that state undocumented immigrants aren’t entitled to counsel in immigration court. Disregarding them and appointing attorneys for all unaccompanied children in deportation proceedings would “destroy the framework of the immigration system.”
Fresco also argued that most of the 14 plaintiffs should be removed from the lawsuit because they’re no longer children and have attorneys, and therefore don’t exemplify the class they’re trying to represent.
The judge has yet to decide whether the lawsuit can proceed.
The issue came to the fore as the number of unaccompanied children making their way to the U.S.–Mexico border started to increase in 2012, spiking in 2014 and garnering international attention to their plight.
Their sheer numbers — 68,631 in fiscal year 2014 and 39,970 the following year — inundated the nation’s immigration courts and left pro bono providers scrambling to meet the demand for legal services. To address the surge, the Obama administration even provided $9 million to help fund legal counsel for 2,600 unaccompanied minors.
Unless the unaccompanied children are able to afford an attorney, which can cost a couple hundred dollars for a consultation to $10,000 for complete representation, they are forced to turn to already strained nonprofit organizations for pro bono help. And that can make all the difference.
“You’re worried that you’ll say the wrong thing or forget something and then be deported."
An analysis of more than 100,000 juvenile cases from 2005 to the height of the surge in 2014 found that in 47% of cases where a child had legal counsel, the court allowed them to remain in the U.S., according to the Transactional Records Access Clearinghouse at Syracuse University. But in instances where a juvenile appeared without a lawyer, 9 out of 10 children were ordered deported — either through a removal order or voluntary departure.
The issue of legal representation for unaccompanied minors gained national attention in March after Jack H. Weil, an immigration judge responsible for training, testified in a deposition that 3 and 4 year olds were capable of representing themselves.
“I’ve taught immigration law literally to 3 year olds and 4 year olds. It takes a lot of time. It takes a lot of patience,” Weil said. “They get it. It’s not the most efficient, but it can be done.”
But the jarring mental image of small children standing alone in a formal courtroom setting happens in only about 10% of cases. While they do appear in court alone in hundreds of cases, most without attorneys don’t show up for their hearings, said Arulanantham with the ACLU.
“A huge reason why children don’t appear is because they don’t have a lawyer, despite having similar profiles and strengths as successful cases,” Arulanantham said. “The way they lose is they fail to appear and get an in absentia order.”
Intimidated by a complex immigration system, some children try to live illegally and undetected once they’re released from a detention center, often to live with a relative. But that has become a harder proposition for some of the 132,154 unaccompanied children who were apprehended at the Southwest border since the 2014 surge through February of this year, especially if they are now adults. In response to the swell, the Obama administration has ramped up efforts to deport them, hoping to discourage other potential migrants in Central America.
Between July 2014 and August 2015, court records show that of the 6,150 unrepresented children who received removal orders, 5,850 were ordered deported in absentia because they didn’t show up to their hearing.
Over and over again, Yeisy squeezed the orange stress ball her psychiatrist had given her as she sat across from a U.S. immigration officer who would decide her fate. Her attorney asked that Yeisy be identified only by her first name because she still has family in Guatemala and fears retaliation from gangs.
“You’re worried that you’ll say the wrong thing or forget something and then be deported,” Yeisy said.
The now 18-year-old had gone over her testimony with her pro bono attorney, Chariane Forrey, at least four times. She relayed how in 2010 her brother, Bryan, and friend Sergio were kidnapped after their families refused to pay a gang’s “protection tax” in Guatemala City.
She recounted the despair her family felt when they found Sergio’s burned, tortured, and bullet-ridden body three days later in a ravine, and the frantic effort to find her brother that was met with threatening phone calls from the gang. In the years that followed, the family stayed on the move, hopping from one relative’s home to another whenever the threats got too serious.
In 2014, Yeisy was raped after a night out with friends, but told the immigration officer she doesn’t know if the attack had anything to do with the profane-laced phone calls she received. Her father eventually fled to the U.S. after being threatened at gunpoint, and it was long before Yeisy set off to follow him north.
Alone and seven and a half months pregnant by her attacker, Yeisy took dozens of buses through Mexico until she reached the border and paid a smuggler to help get her across. But unlike her father, she was caught by U.S. Customs and Border Patrol agents.
After she gave birth at a shelter for unaccompanied minors, Yeisy was sent to live with her father in Wilmington, California, just south of Los Angeles. Almost immediately, they retained Forrey through the Esperanza Immigrant Rights Project.
“When a child doesn’t have an attorney in court, the judge doesn’t have the time to go through the trauma these kids have lived through,” Forrey said. “After several meetings they’re able to reveal more of their story, they understand what’s happening with their case, and, like Yeisy, they feel a lot more strength, empowerment, and courage.”
Yeisy spends most of her days inside the impeccably clean home she shares with her dad and aunt, but a part of her still remains in Guatemala. She misses going on errands with her mother and sister, and hasn’t given up hope that her older brother will be found.
“I never wanted to live in the United States — it was a place I thought about visiting,” Yeisy said. “But as fate would have it this is home now.”
Brian is also living in Los Angeles, but unlike Yeisy, he's doing so under the shadow of deportation. Without legal counsel, he had little to no guidance when he was released from a detention center in Texas. So when he arrived at his brother’s place in L.A., he failed to check in to have his case moved to California.
It went downhill from there.
Brian’s brother was his designated sponsor, but failed to change venues or ensure he attended all court hearings. Making matters worse, the 16-year-old didn’t speak English, and his Spanish was limited because in Guatemala he only spoke Quiché, a Mayan language.
“The first thing he told me when I got here was that I needed to work so I did,” Brian said. “I knew I had to go to court, I tried explaining it to my brother, and he would tell me that this was his house and he didn’t care.”
He’s since had the same Downtown L.A. textile job, which is probably where he was when a judge in Harlingen, Texas, ordered him deported in absentia in December 2014.
He now has a pro bono attorney, Miguel Mexicano, who trying to reopen his case in Texas, where the conservative 5th Circuit Court of Appeals has jurisdiction and motions to reopen face more scrutiny. It’s also the same court that blocked President Obama’s executive actions to defer the deportation of millions of immigrants.
“When you have bad sponsors, it’s just really hard for someone without an attorney to know what to do, and Brian didn’t get his fair day in court, it’s a due process issue,” Mexicano said. “This is a kid who wants to fight his case, but he never had a fair shot.”
Mexicano asked that Brian use a pseudonym because he hopes to reopen his case.
Mexicano believes Brian has a good asylum case because of the abuse he suffered at the hands of his family — and domestic violence is a form of persecution recognized by U.S. authorities.
“I was more scared of going back home than continuing.”
At 16, Brian left his home in west Guatemala to live with his brother after years of violence abuse at home.
With money he borrowed from his brother — a $6,500 loan he’s still trying to pay off — Brian paid a smuggler to get him into the U.S. Part of the arduous journey involved clinging to the top of the Mexican freight train known as The Beast, where migrants broiled in the hot sun.
At night, they walked through barren lands as temperatures plummeted.
“It was so cold, everything felt like ice,” Brian told BuzzFeed News. “At one point I just started crying from hunger and cold, but I knew going back wasn’t an option. I was more scared of going back home than continuing.”
Brian’s Spanish has since improved and he’s taking English classes at night. He’s 18 now, thin, and sporting a buzzed haircut like his brother told him to days after arriving in Los Angeles. Walking around Echo Park Lake, he keeps his eyes down and looks like many of the young men around him, wearing skinny gray jeans and Converse shoes.
Sitting at the edge of the water, he remembered meeting other kids like him at school, some of them with doting parents and attorneys fighting their asylum cases.
“It’s hard to hear stories of other kids with families who help them, who went to court, and were allowed to stay,” he said. “Why didn’t I get the same help? Sometimes I just sit down and cry.”